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EXHIBIT 10.1
EXECUTION COPY
TRANSFER AND ASSUMPTION AGREEMENT
(FIRST UNION MASTER CREDIT CARD TRUST)
TRANSFER AND ASSUMPTION AGREEMENT, dated as of September 30, 2000 (this
"Agreement"), by and among First Union Direct Bank, National Association (as
successor to First Union National Bank of Georgia), a national banking
association (the "Bank"), in its individual capacity and as Transferor and
Servicer, The Bank of New York, a banking corporation organized and existing
under the laws of the State of New York, as Trustee (the "Trustee"), and MBNA
America Bank, National Association, a national banking association
("Successor"), as successor Transferor and Servicer pursuant to the Pooling and
Servicing Agreement referred to below.
WITNESSETH
WHEREAS, the Bank and Trustee are parties to the Pooling and Servicing
Agreement, dated as of September 29, 1995, as amended by the First Amendment to
the Pooling and Servicing Agreement, dated as of February 22, 1996, and as
further amended by the Second Amendment to the Pooling and Servicing Agreement,
dated as of March 31, 1996, and as further amended by the Third Amendment to the
Pooling and Servicing Agreement, dated as of June 13, 1996, and as further
amended by the Fourth Amendment to the Pooling and Servicing Agreement, dated as
of September 1, 1997, and as further amended by the Fifth Amendment to the
Pooling and Servicing Agreement, dated as of August 16, 1999, and as
supplemented by the Supplemental Agreement to the Pooling and Servicing
Agreement, dated as of June 2, 1997, and as further supplemented by the Series
1996-1 Supplement, dated as of March 5, 1996, and as further supplemented by the
Series 1998-A Supplement, dated as of September 28, 1998, and as amended or
supplemented by Assignment No. 1 of Receivables in Additional Accounts, dated as
of March 12, 1997 (collectively, as amended or supplemented from time to time,
the "Pooling and Servicing Agreement"); and
WHEREAS, the Trustee, the Bank, the CA Investors named therein
including The Sanwa Bank, Limited, New York Branch, and The Sanwa Bank, Limited,
New York Branch, as agent, are the parties to the Loan Agreement, dated as of
March 5, 1996 (as amended or supplemented from time to time, the "Loan
Agreement") relating to Series 1996-1; and
WHEREAS, the Bank, Corporate Asset Funding Company, Inc., as the
Purchaser (the "Purchaser"), and Citicorp North America, Inc., as Certificate
Agent for the Purchaser and the Owners (the "Class A Certificate Agent"), are
parties to the Certificate Purchase Agreement, dated as of September 28, 1998
(as amended or supplemented from time to time, the "Certificate Purchase
Agreement") relating to Series 1998-A; and
WHEREAS, the Trustee, the Bank, the CA Investors named therein
including First Union National Bank, and First Union National Bank, as agent
(the "Collateral Agent"), are the parties to the Collateral Agreement, dated as
of September 28, 1998 (as amended or supplemented from time to time, the
"Collateral Agreement") relating to Series 1998-A; and
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WHEREAS, pursuant to a Purchase and Sale Agreement, dated as of August
14, 2000 (the "Purchase and Sale Agreement"), Successor is purchasing from the
Bank, and the Bank is selling to Successor, the assets described in the Purchase
and Sale Agreement; and
WHEREAS, the parties wish to provide for the assumption by Successor of
the obligations of the Transferor and the Servicer, as contemplated by Sections
7.02 and 8.02 of the Pooling and Servicing Agreement.
NOW, THEREFORE, the Bank, the Trustee and Successor hereby agree as
follows:
1. Defined Terms. All capitalized terms used in this Agreement
without definition and defined in the Pooling and Servicing Agreement shall have
the meanings ascribed to them in the Pooling and Servicing Agreement (including
by way of reference to other documents).
2. Assumption of Transferor Obligations. (a) On and after the
date of this Agreement, and pursuant to Section 7.02 of the Pooling and
Servicing Agreement, Successor (i) expressly assumes, undertakes and agrees to
be liable for the performance of each and every covenant and obligation of the
Transferor, mutatis mutandis, and (ii) shall benefit from all rights granted to
the Transferor, under the Pooling and Servicing Agreement; provided, however,
that to the extent that any right, covenant or obligation of the Transferor, as
applicable under the Pooling and Servicing Agreement, is inapplicable to
Successor, Successor shall be subject to such covenant or obligation, or benefit
from such right, as would apply, to the extent practicable, to Successor.
(b) On and after the date of this Agreement, the Bank shall be
relieved of all of its obligations as Transferor under the Pooling and Servicing
Agreement, other than obligations arising under the Pooling and Servicing
Agreement prior to the date of this Agreement.
3. Assumption of Servicer Obligations. (a) On and after the date
of this Agreement, and pursuant to Section 8.02 of the Pooling and Servicing
Agreement, Successor (i) expressly assumes, undertakes and agrees to be liable
for the performance of each and every covenant and obligation of the Servicer,
mutatis mutandis, and (ii) shall benefit from all the rights granted to the
Servicer, under the Pooling and Servicing Agreement; provided, however, that to
the extent that any right, covenant or obligation of the Servicer, as applicable
under the Pooling and Servicing Agreement, is inapplicable to Successor,
Successor shall be subject to such covenant or obligation, or benefit from such
right, as would apply, to the extent practicable, to Successor.
(b) On and after the date of this Agreement, the Bank shall be
relieved of all of its obligations as Servicer under the Pooling and Servicing
Agreement, other than obligations arising under the Pooling and Servicing
Agreement prior to the date of this Agreement.
(c) In connection with the assumption by Successor pursuant to
Section 3(a) hereof, the Servicer will transfer to Successor the assets set
forth in Schedule 1.
4. The Certificate Purchase Agreement. (a) The Bank hereby
assigns all of its rights and obligations under the Certificate Purchase
Agreement to Successor and, on and after the date of this Agreement, Successor
expressly assumes, undertakes and agrees to be liable for the
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performance of each and every covenant and obligation of the Bank, as Transferor
and Servicer, mutatis mutandis, under the Certificate Purchase Agreement.
(b) On and after the date of this Agreement, the Bank shall be
relieved of its obligations under the Certificate Purchase Agreement, other than
obligations arising under the Certificate Purchase Agreement prior to the date
of this Agreement.
(c) Pursuant to Section 7.04(b) of the Certificate Purchase
Agreement, the Class A Certificate Agent, acting at the direction of the
Purchaser, hereby consents to the Bank's assignment of all of the Bank's rights
and obligations under the Certificate Purchase Agreement to Successor.
5. The Loan Agreement. (a) The Bank, as Transferor and Servicer,
hereby assigns all of its rights and obligations under the Loan Agreement to
Successor and, on and after the date of this Agreement, Successor expressly
assumes, undertakes and agrees to be liable for the performance of each and
every covenant and obligation of the Bank, as Transferor and Servicer, mutatis
mutandis, under the Loan Agreement.
(b) On and after the date of this Agreement, the Bank shall be
relieved of its obligations under the Loan Agreement, other than obligations
arising under the Loan Agreement prior to the date of this Agreement.
(c) Pursuant to Section 7.09(b) of the Loan Agreement, The Sanwa
Bank, Limited, New York Branch, as the Majority Investor (as defined in the Loan
Agreement), hereby consents to the Bank's assignment of all of the Bank's rights
and obligations under the Loan Agreement to Successor. The Sanwa Bank, Limited,
New York Branch acknowledges that this Agreement satisfies the requirements of
Sections 7.09(b)(i) and (ii) of the Loan Agreement.
6. The Collateral Agreement. (a) The Bank, as Transferor and
Servicer, hereby assigns all of its rights and obligations under the Collateral
Agreement to Successor and, on and after the date of this Agreement, Successor
expressly assumes, undertakes and agrees to be liable for the performance of
each and every covenant and obligation of the Bank, as Transferor and Servicer,
mutatis mutandis, under the Collateral Agreement.
(b) On and after the date of this Agreement, the Bank shall be
relieved of its obligations under the Collateral Agreement, other than
obligations arising under the Collateral Agreement prior to the date of this
Agreement.
(c) Pursuant to Section 7.9(b) of the Collateral Agreement, First
Union National Bank, as the Majority Investor (as defined in the Collateral
Agreement), hereby consents to the Bank's assignment of all of the Bank's rights
and obligations under the Collateral Agreement to Successor. First Union
National Bank acknowledges that this Agreement satisfies the requirements of
Sections 7.9(b)(i) and (ii) of the Collateral Agreement.
7. Representations and Warranties.
(a) By the Bank. The Bank hereby represents and warrants to
Trustee, on behalf of the Trust (as defined in the Pooling and Servicing
Agreement), and to Successor as follows:
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(i) This Agreement and the Purchase and Sale Agreement
each constitutes a legal, valid and binding obligation of the Bank enforceable
against the Bank in accordance with its terms (except as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and the rights of creditors of national banking
associations, and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in equity)).
(ii) The Bank is a national banking association duly
organized, validly existing and in good standing under the federal laws of the
United States of America and has the power and authority to execute and deliver
this Agreement.
(iii) There are no proceedings or investigations pending
or, to the best knowledge of the Bank, threatened against the Bank before any
court, regulatory body, administrative agency or other tribunal or governmental
instrumentality asserting the invalidity of this Agreement or seeking to prevent
the consummation of any of the transactions contemplated by this Agreement.
(iv) All authorizations, consents, orders or approvals or
other actions of any Person or of any court or other governmental authority
required to be obtained by the Bank in connection with the execution and
delivery of this Agreement by the Bank and the performance of the transactions
contemplated by this Agreement by the Bank, have been obtained.
(v) All conditions required under Sections 7.02 and 8.02
of the Pooling and Servicing Agreement (other than the execution and delivery of
this Agreement) and the Certificate Purchase Agreement in connection with the
transactions contemplated by this Agreement have been satisfied.
(b) By Successor. Successor hereby represents and warrants to
Trustee, on behalf of the Trust (as defined in the Pooling and Servicing
Agreement), and to the Bank as follows:
(i) This Agreement and the Purchase and Sale Agreement
each constitutes a legal, valid and binding obligation of Successor, enforceable
against Successor in accordance with its terms (except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general, and except as such enforceability may be limited
by general principles of equity (whether considered in a suit at law or in
equity)).
(ii) Successor is a national banking association duly
organized, validly existing and in good standing under the federal laws of the
United States of America, has the power and authority to execute and deliver
this Agreement and is a Person eligible to assume and perform the obligations of
the Transferor and the Servicer under the Pooling and Servicing Agreement, the
Certificate Purchase Agreement, the Loan Agreement, the Collateral Agreement and
the transactions contemplated therein.
(iii) There are no proceedings or investigations pending
or, to the best knowledge of Successor, threatened against Successor before any
court, regulatory body, administrative agency or other tribunal or governmental
instrumentality asserting the invalidity
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of this Agreement or seeking to prevent the consummation of any of the
transactions contemplated by this Agreement.
(iv) All authorizations, consents, orders or approvals or
other actions of any Person or of any court or other governmental authority
required to be obtained by Successor in connection with the execution and
delivery of this Agreement by Successor and the performance of the transactions
contemplated by this Agreement by Successor, have been obtained.
8. Financing Statements. At or before the Closing Date (as
defined in the Purchase and Sale Agreement), the Bank will execute, file and
deliver to Successor financing statements naming Successor as debtor and the
Trustee as secured party, prepared by the Bank, in the appropriate forms (with
appropriate notations of date and time of filing from the filing office) under
the Uniform Commercial Code in the applicable jurisdiction to give notice of
Successor's interest in the Accounts (as defined in the Purchase and Sale
Agreement). Such financing statements will be filed by the Bank at the
appropriate place or places maintained under applicable law for the financing
statements to be filed for such purposes. To the extent such financing
statements are filed in connection with Section 3.1(d) of the Purchase and Sale
Agreement, this Section 7 will be deemed satisfied.
9. Acceptance by Trustee. Trustee hereby accepts the assumption
by Successor of rights and obligations of the Bank as Transferor and Servicer
under the Pooling and Servicing Agreement, and from and after the date of this
Agreement, Successor shall be the Transferor and Servicer thereunder (and as
otherwise contemplated by this Agreement).
10. Further Assurances. The Bank agrees to do or take, or cause to
be done or taken, all such things and actions as Successor or Trustee may
reasonably request in order to effect more fully the transfers contemplated by
this Agreement.
11. Ratification of Agreements. As supplemented and amended by
this Agreement, the Pooling and Servicing Agreement, the Certificate Purchase
Agreement, the Loan Agreement and the Collateral Agreement are in all respects
ratified and confirmed and each such agreement, as so supplemented and amended
by this Agreement, shall be read, taken and construed as one and the same
instrument.
12. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO ITS CONFLICT OF LAW PROVISIONS.
13. Counterparts. This Agreement may be executed in two or more
counterparts, and by different parties on separate counterparts, each of which
shall be an original, but all of which shall constitute one and the same
instrument.
14. Effectiveness. This Agreement shall be effective as of the
Effective Time (as such term is defined in the Purchase and Sale Agreement).
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IN WITNESS WHEREOF, the Bank, the Trustee, Successor, Collateral
Interest Holder, the Certificate Agent and the Collateral Agent have caused this
Agreement to be duly executed by their respective officers as of the day and
year first written above.
FIRST UNION DIRECT BANK, NATIONAL
ASSOCIATION, as Transferor and
Servicer and in its individual capacity
By: /S/ JAMES H. GILBRAITH II
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Name:
Title:
THE BANK OF NEW YORK, Trustee
By: /s/ CASSANDRA SHEDD
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Name: CASSANDRA SHEDD
Title: ASSISTANT TREASURER
MBNA AMERICA BANK, NATIONAL ASSOCIATION
Successor Transferor and Servicer
By: /s/ THOMAS DUNN
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Name: Thomas Dunn
Title: Executive Vice President
CONSENTED TO BY THE MAJORITY INVESTORS
UNDER THE LOAN AGREEMENT
THE SANWA BANK, LIMITED,
NEW YORK BRANCH,
as Majority Investor
By: /s/ KAZUYA KURANO
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Name: Kazuya Kurano
Title: Senior Vice President
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CONSENTED TO BY THE CLASS A CERTIFICATE AGENT
CITICORP NORTH AMERICA, INC.,
in its capacity as Class A Certificate Agent
for the Class A Certificateholder
By: /s/ RADFORD C. WEST
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Name: Radford C. West
Title: Vice-President
CONSENTED TO BY THE MAJORITY INVESTORS
UNDER THE COLLATERAL AGREEMENT
FIRST UNION NATIONAL BANK,
as Majority Investor
By: /S/ JAMES H. GILBRAITH II
-------------------------------
Name:
Title:
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SCHEDULE 1
In connection with the Transfer and Assumption Agreement to which this
Schedule is attached, the Servicer will transfer to Successor the funds in the
following accounts:
<TABLE>
<S> <C>
1. Collection Account - funds in an amount equal to $170,814,662.
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2. Spread Account (1996-1) - funds in an amount equal to $8,363,639.
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3. Reserve Account (1996-1) - funds in an amount equal to $4,600,000.
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4. Principal Funding Account (1996-1) - funds in an amount equal to $345,706,218.
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</TABLE>
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